Trump v National Archives in attempt to once again thwart the lawful Congressional investigation. Updated with Trump’s response.

Always read the exhibits and footnotes. And I mean always read them

Good Morning..

imagine what it’s like to slowly go through 30+ hours of videos and pictures only to realize you never actually published one of the most best ocean sunrise… it’s like finding a $20 bill in your winter jacket.

The Donald acts with impunity…

Your obligatory primer - this October 6 article also provided several previously unreleased documents from the Select Committee (incidentally this past summer I also explained why Executive Privilege only occurs one executive at a time, read more here and why the July 26, 2021 Deputy Attorney Bradley Weinsheimer letter(s) executive privilege went to the following individuals (see Scribd Link to the 18 pages) as I have briefly discussed this in a recently published article, found here or click the link below) -further the various filings discussed in this article can be downloaded from my Scribd Account -there are a total of five filings…

Trump is truly the living embodiment of a vexatious litigant…

National Archives October 30, 2021 Filing

On October 30, 2021 the NARA DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION see ECF Link https://ecf.dcd.uscourts.gov/doc1/04518858667 -whereas previous filings merely sighted the existence of records, the Exhibit to Document No 21 is pretty detailed and offer a whole-lotta- sunlight onto former president Trump’s dubious assertion of various “privileges”

…In light of the extraordinary circumstances underlying the Select Committee’s investigation, and after consideration of the former President’s assertions of privilege, President Biden concluded that the Select Committee’s need for the information provided in the initial batches of records outweighs the Executive Branch confidentiality interests underlying the privilege, and that an assertion of executive privilege is neither justified nor in the best interests of the Nation. This suit followed.

The fact that Donald Trump truly behaves in a manner which is not only incompatible with our Rule of Law or that “no one is above the law” it is truly astounding that Trump genuinely comports himself as though he is above our laws. Yet unsurprisingly Trump believes he can wrap himself up in Executive Privilege is rather expected after all Trump is the perennial victim. But not the least of which is acceptable…in mid-October 2021 I dissected Trump’s latest litigation strategy

I can do what I want -when I want because my name is Donald DARVO Trump…

This closing paragraph is absolutely sublime…because it once again calls into question Trump’s absurd legal arguments and I truly find this filing a delightful fact and counter argument filled read. Yes I know it’s the little things in life that bring incandescent joy to my otherwise dull life. As I repeatedly expressed one major flaw in Trump’s absurd argument is he’s not the one being asked to produce the documents/records. And that assertion is largely affirmed in the following paragraph which reads in part:

…There is no basis here for a court to second-guess the judgment of the sitting President, as only he is positioned to decide the best interests of the Executive Branch and weigh that interest against congressional need…

He makes no showing that he personally will be injured by compliance with the Select Committee’s request, and instead asserts that a voluntary release of records at the direction of the sitting President, limited to the January 6 attack, might compromise future interests in effective Executive Branch decisionmaking.

withholding certain documents - are NOT in the best interest of the United States

I believe the recent (Oct 26) invocation by former president Trump now marks the fourth time Trump notified the archivist that he is asserting executive privilege. ¹

Meaning that President Biden has twice stated for the record that Trump’s executive privilege on a large tranche of documents is “not in the best interest of the United States…” And rightfully so the NARA goes on to argue that while Trump’s recitation of Nixon v GSA these are the questions asked before SCOTUS ² and that ultimately means Trump’s footing on his arguments are not as strong as he claims they are. Again Trump has a proven track record of being a vexatious litigant but more importantly his track record of misrepresenting what SCOTUS held is also notable. For Example in Nixon v GSA SCOTUS was asked the following questions…

1. Was the Presidential Recordings and Materials Preservation Act unconstitutional on its face as a violation of the separation of powers?

2. Was the act unconstitutional on its face as a violation of presidential privilege doctrines?

3. Was the act unconstitutional on its face as a violation of Nixon’s privacy interests?

4. Was the act unconstitutional on its face as a violation of Nixon’s First Amendment right to free association?

5. Was the act unconstitutional on its face as a violation of the Bill of Attainder Clause?

Here the NARa argues that In Nixon v. GSA, - former President Nixon brought suit to challenge the constitutionality of the PRMPA. By asserting that it violated separation of powers, presidential privilege, and several personal rights. See 433 U.S. at 439-455. The Supreme Court roundly rejected each of these previous arguments…

…Although Nixon v. GSA addressed disclosures to the Archivist, and did not itself involve any questions about whether the presidential communications privilege would protect the disclosure of particular records to Congress or to the public, it is widely understood to have established that a former President “may … be heard to assert” claims of the presidential communications privilege involving his own communications, id. at 439, at least in circumstances where Congress has provided for adjudication of such claims, as it has done in the Presidential Records Act….

What is Trump’s end game…

Based on the October 30, 2021 filing it appears that Donald Trump is trying to invoke executive privilege on some 724 pages of documents (subsequent 4th set of documents includes 551 pages where Trump attempted to assert executive privilege ³. The scope of documents/records includes:

• Handwritten Memos from White House Chief of Staff Mark Meadows

• 30 pages of Trump’s daily schedule —I mean how full was Trump’s actual schedule on Jan 5th, 6th or 7th? We all know that Trump never called the Department of Defense

• Various phone/call logs for both president Trump and VP Pence

• Various White House Records

• And “other handwritten notes”

Plaintiff asserted a constitutionally-based privilege over 724 of the pages subject to the Second and Third Notifications… President Biden indicated that, for the reasons previously explained, he would not uphold that privilege claim— the Archivist informed Plaintiff that NARA would disclose the records in those notifications subject to Plaintiff’s claim of privilege to the Committee on November 26, 2021, per 36 C.F.R. § 1270.44(g), absent any intervening court order. Id. ¶¶ 25-26.

On October 15, 2021, NARA provided the Fourth Notification to Plaintiff’s PRA representatives of its intent to disclose approximately 551 pages of records responsive to the Select Committee’s request. Id. ¶ 27. The review period for that batch of records is ongoing. NARA anticipates providing multiple additional notifications on a rolling basis as its search and review locates additional responsive records. Id. ¶ 28.

Plaintiff… is no longer the President, and he lacks general authority to speak for the Executive Branch or to assert its interests. Only the “incumbent is charged with performance of the executive duty under the Constitution” and is situated to protect Executive Branch interests while still being subject to “political checks against . . . abuse” of that power. Nixon v. GSA, 433 U.S. at 448. Accordingly, “it is the new President”—not his predecessor—“who has the information and attendant duty of executing the laws in the light of current facts and circumstances,” and “the primary, if not the exclusive” duty of deciding when the need of maintaining confidentiality in communications “outweighs whatever public interest or need may reside in disclosure.”

The footnote is the chef kiss of all chefs kisses

Plaintiff does not appear to invoke his personal rights or privileges. He makes conclusory assertions of attorney-client privilege and attorney work product, but he appears to do so as a species of executive privilege. See, e.g., Pl.’s Mot. at 3 (referring indiscriminately to “various privileges,” including “conversations with (or about) foreign leaders, attorney work product, the most sensitive national security secrets, along with a litany of privileged communications among a pool of potentially hundreds of people.”….

Below is a quick list of what former president Trump has invoked (or at least attempted to do so) executive privilege - see Exhibit to the October 30, 2021 filing.

• He asserted privilege over: (i) a draft proclamation honoring the Capitol Police and deceased officers Brian Sicknick and Howard Liebengood, and related emails from the files of the Office of the Executive Clerk (53 pages); and

• (ii) records from the files of Deputy White House Counsel Patrick Philbin, including a memorandum apparently originating outside the White House regarding a potential lawsuit by the United States against several states President Biden won (4 pages),

  • an email chain originating from a state official regarding election-related issues (3 pages),

  • talking points on alleged election irregularities in one Michigan county (3 pages),

  • a document containing presidential findings concerning the security of the 2020 presidential election and ordering various actions (3 pages), and

  • notes apparently indicating from whom some of the foregoing were sent (2 pages).

Now why would Donald Trump want to hide these from Congress and the general public?

• The First Notification includes 136 pages of records transferred to NARA from (i) the files of Chief of Staff Mark Meadows,

• (ii) the files of Senior Advisor to the President Stephen Miller,

• )iii) the files of Deputy Counsel to the President Patrick Philbin,

• (iv) the White House Daily Diary, which is a chronological record of the President’s movements, phone calls, trips, briefings, meetings, and activities,

• (v) the White House Office of Records Management, and

• (vi) the files of Brian de Guzman, Director of White House Information Services.

But I’d like to draw your attention to pages 11 & 12 of Billy Laster - which reads in part -the sheer inanity of Trump throwing down the executive privilege assertion is almost laughable but then you’re suddenly confronted with the reconciliation of Trump, the deadly big lie and the endless echo chamber. Suffice to say when the history books are written an excellent case study in “how do you radicalize hundreds possibly thousands Americans and then lead them to commit acts of domestic terrorism” allows you to drag a massive through line between Facebook, Trump, Militia recruitment, to Jan 6th.

Second Notification includes 742 pages of records transferred to NARA from: (i) the files of Chief of Staff Mark Meadows; (ii) the White House Office of the Executive Clerk; (iii) files from the White House Oval Office Operations; (iv) the files of White House Press Secretary Kayleigh McEnany; and (v) Senior Advisor to the President Stephen Miller.

..executive privilege over 656 of these 742 pages of records. He asserted privilege over: (i) pages from multiple binders containing proposed talking points for the Press Secretary, interspersed with a relatively small number of related statements and documents, principally relating to allegations of voter fraud, election security, and other topics concerning the 2020 election (629 pages); (ii) presidential activity calendars and a related handwritten note for January 6, 2021, and for January 2021 generally, including January 6 (11 pages); (iii) draft text of a presidential speech for the January 6, 2021, Save America March (10 pages); (iv) a handwritten note from former Chief of Staff Mark Meadows’ files listing potential or scheduled briefings and telephone calls concerning the January 6 certification and other election issues (2 pages); and (v) a draft Executive Order on the topic of election integrity (4 pages).

And as tempting as it maybe be to gloss over certain facts contained in that Declaration - I would urge you to reread page 12 because what Trump is claiming executive privilege is - well it reads like a check list of behind the curtain activity to subvert a fair and free election. Trump relies heavily on the supposition, that “Congress does not need the records to further any legislation purpose” -which in of itself is a highly dubious argument.

Relevant Court Filings..

• October 29, 2021 Memorandum in opposition to re 5 MOTION for Preliminary Injunction and Request for Expedited Hearing filed by BENNIE G. THOMPSON, UNITED STATES HOUSE SELECT COMMITTEE TO INVESTIGATE THE JANUARY 6TH ATTACK ON THE UNITED STATES CAPITOL via ECF https://ecf.dcd.uscourts.gov/doc1/04508858649

  

  • …the equities and public interest heavily favor the Select Committee, which needs the records for the essential task of identifying the causes of the January 6 attack, and proposing legislative measures and other actions to safeguard our democracy for our Nation’s future…

  • Courts found Mr. Trump’s claims “not credible” and “without merit”; a “Frankenstein’s monster” of “improperly stitched together theories.” As one court noted, “calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.”

• The amount of pressure Trump et put on local/state lawmakers was absolutely immense —lest you forget the hours long recording of Mark Meadows and Donald Trump’s January 2, 2021 call between Team Trump and Georgia —wherein Trump proceeds to pressure the Georgia Secretary of State and then imply that Raffensberger would face criminal charges, also timely because Raffensberger is currently on tour promoting his book and where once again Raffensberger makes clear -Trump threatened him, and his staff…

• October 30, 2021 RESPONSE re 5 MOTION for Preliminary Injunction and Request for Expedited Hearing filed by DAVID S. FERRIERO, NATIONAL ARCHIVES AND RECORDS ADMINISTRATION.

  • Via ECF https://ecf.dcd.uscourts.gov/doc1/04518858667 and

  • Exhibit via ECF https://ecf.dcd.uscourts.gov/doc1/04518858668

• Memorandum in opposition to re 5 MOTION for Preliminary Injunction and Request for Expedited Hearing filed by BENNIE G. THOMPSON, UNITED STATES HOUSE SELECT COMMITTEE TO INVESTIGATE THE JANUARY 6TH ATTACK ON THE UNITED STATES CAPITOL via ECF https://ecf.dcd.uscourts.gov/doc1/04518858649

• AMICUS BRIEF by FORMER MEMBERS OF CONGRESS via ECF https://ecf.dcd.uscourts.gov/doc1/04508859786

  • The risks associated with denying Congress this access far outweigh any insult to the personal interests Mr. Trump may have in these records or any harm to the interests of the Office of the President that the former President gleans but the current holder of the office, chosen by the American people over Mr. Trump, disavows,” said in their 32-page amici brief

If my recollection of a previous minute order is correct, then Trump had until November 1, 2021 to file a reply —to date the docket doesn’t reflect he’s filed a response. To access an open source links to the filings discussed in this article- you can pull each down via my Scribd Account ⁴

So for now we need to sit and wait for Trump’s Reply Brief to hit the docket. Also keep in mind that there’s a November 12th deadline which is looming large over the next tranche of documents/records.

-Filey

Updated November 2, 2021 at 9:25PM

As expected earlier today Trump responded and in his reply brief (or see Scribd Link for Trump’s filing) his arguments are unavailing both in terms of substance and style. The fact Trump continues to pontificate as though he’s the victim isn’t surprising but nonetheless you have to give him partial credit for sticking to his script…

Setting aside the fact that Trump was not at all victorious in his Mazars suit it is kind of underwhelming how he continues to beat the drum that the House Select Committee “doesn’t have a legitimate legislative purpose” the fact Trump is largely “Congress is on another witch hunt” intended to usurper power solely vested in Congress by our Constitution —yet Trump’s cleaving onto the notion that he retains any and all executive power —his counter argument strains credulity

…Notwithstanding their allegations and insinuations of conspiracy, investigations by the F.B.I. and the Senate Committee on Government Affairs and Homeland Security rebuff their contentions of wrongdoing by Trump Administration officials. “The FBI has found scant evidence that the Jan. 6 attack on the U.S. Capitol was the result of an organized plot to overturn the presidential election result.” Mark Hosenball and Sarah N. Lynch, Exclusive: FBI finds scant evidence U.S. Capitol attack was coordinated, REUTERS

…the Committee is not engaged in a “run-of-the-mill legislative effort,” rather they are hunting for the presidential records of a political rival implicating “intense political interest for all involved.” Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2034 (2020). Congress’s efforts to obtain records created during President Trump’s term of office implicates the same separation of powers concerns adjudicated just last year by the Supreme Court…

I mean the level of subterfuge here even for Trump is on a different level. Again for someone who’s obsessed with his “carefully crafted” public image of being “strong and powerful” Trump sure does whine like a little mitch. Whereby Trump is always the victim. And Congress is the boogieman who’s out to get Trump. Irrespective of his current justification it is a stunning display of serious gaslighting and a case study in why Trump should never hold any office that requires the public trust…

Again you can pull down Trump’s reply brief via my Scribd Account, link found here —but his reply brief wasn’t at all successful or articulated a cognizable argument of why he’s fighting so hard to shroud his communiques via Executive Privilege -but then seeks to question the rationale by the incumbent President and President Biden’s determination that “upholding executive privilege is not in the best interest of the United States”… so now we wait and see what the Judge rules. Again that November 12th deadline is looming large over Trump’s purported Executive Privilege —also I’m taking tomorrow off because I have a follow up with the dental surgeon to discuss the next steps for the teeth that were knocked out…

1. October 8, 2021 - Second Letter from Dana A. Remus, Counsel to the President, to David Ferriero, Archivist of the United States, dated October 8, 2021 - last accessed November 1, 2021 https://www.whitehouse.gov/briefing-room/statements-releases/2021/10/13/second-letter-from-dana-a-remus-counsel-to-the-president-to-david-ferriero-archivist-of-the-united-states-dated-october-8-2021/ - also see Letter from Dana A. Remus, Counsel to the President, to David Ferriero, Archivist of the United States, dated October 8, 2021 -https://www.whitehouse.gov/briefing-room/statements-releases/2021/10/12/letter-from-dana-a-remus-counsel-to-the-president-to-david-ferriero-archivist-of-the-united-states-dated-october-8-2021/

2. See "Nixon v. Administrator of General Services." Oyez, www.oyez.org/cases/1976/75-1605. Accessed 1 Nov. 2021. See https://apps.oyez.org/player/#/burger6/opinion_announcement_audio/17711

3. See June 2021 HSGAC Report - Jan6th Attack on the Capitol - last accessed November 1, 2021 https://www.hsgac.senate.gov/imo/media/doc/HSGAC&RulesFullReport_ExaminingU.S.CapitolAttack.pdf

4. See https://www.scribd.com/user/489178812/File-411 for links to the five filings discussed herein https://www.scribd.com/document/536610734/Trump-v-NARA-Re-Jan6th-Docs-Congressional-Defendants-Reply-Brief